10 years of “Unfair Competition & Compliance Law Portal” (2014-2024) – what has changed in law on combating unfair competition?
The “Unfair Competition & Compliance Law Portal” has been publishing for 10 years now. The project the aim of which was to popularise the knowledge about preventing and combating unfair competition and associated issues, was initiated in October of 2014. “UCLP” is a magazine entered into the Register of Journals and Periodicals kept the Regional Court in Warsaw under number ISSN 2543 5663.
The Competition Law Portal publishes news and case law examples in the field of unfair competition and related fields.
During 10 years of „UCLP”, we have witnessed the development of unfair competition law in Poland as well as many legislative changes concerning both substantive law and unfair competition proceedings.
Below, we summarise the most significant changes to the Act of 16 April 1993 on combating unfair competition and the Code of Civil Procedure that have been made in the last 10 years.
Protection of trade secrets
On 4 September 2018, an amendment to the Act on combating unfair competition concerning the protection of trade secrets came into force. It implemented the Directive 2016/943 of the European Parliament and of the Council (EU) of 8 June 2016 on the protection of undisclosed know-how and classified commercial information (trade secrets) against their unlawful acquisition, use and disclosure into the Polish legal order.
According to the new definition, trade secrets cover technical, technological, organisational or other information of economic value which, either as a whole or in a particular aggregation and collection of its elements, is not generally known to persons normally dealing with that type of information or is not easily accessible to such persons, provided that the person entitled to use or dispose of the information has taken steps, exercising due diligence, to keep it confidential.
An unfair action is the disclosure, use or acquisition of someone else’s information constituting a trade secret. The Act specifies in detail what each of the acts constituting an act of unfair competition consists of, and also indicates situations in which such an act is not qualified as an infringement of the law (e.g. reverse engineering, protection of an interest protected by law).
The catalogue of civil law claims available to the aggrieved entrepreneur has been extended. He may demand that the judgment be made public, as well as remedying the damage by paying a sum of money in an amount corresponding to the remuneration that would have been due at the time of claiming it for his consent to the use of information constituting a trade secret. On the other hand, the infringer of an act of unfair competition, in the presence of extenuating circumstances of his guilt, may request that he is ordered to pay a specific remuneration instead of being prohibited from further use of information.
We wrote about the changes to the rules on the protection of trade secrets in the UCLP Portal:
https://uclp.eu/trade-secrets-after-the-amendment-to-the-act-on-combating-unfair-competition/
https://uclp.eu/infringement-of-trade-secrets-new-claims/
New acts of unfair competition
Infringements in relation to the disclosing of economic information
Since 13 November 2017, Article 17f of the Act on combating unfair competition has been in force, in which a new unfair competition act has been added.
Its introduction involved establishing in the Act on access to business information and exchange of business data, the rules of civil liability of the creditor and the economic information bureau for unlawful provision of information, failure to update or failure to delete an entry.
It has been determined that a violation of the rules relating to the proper circulation of business information constitutes an act of unfair competition as defined in Article 17f.
It may be committed by a creditor who provides data to an economic information bureau in violation of the aforementioned Act, as well as who does not apply for updating or deleting the information despite the existence of such an obligation on his part.
The unfair act may also apply to the economic information bureau itself when, contrary to its obligation, it fails to delete or update business information.
The new regulations are designed to protect the debtor from disclosing information that is untrue, outdated or incomplete and the associated negative effects on its credibility and reputation.
We would like to remind you that in the 3rd edition of the competition for the best master’s thesis in year 2020, the ‘UCLP’ Portal awarded a prize for the thesis written on the subject of infringement of the rules of disclosing economic information as an act of unfair competition:
https://uclp.com.pl/wreczenie-nagrody-konkurs-na-najlepsza-prace-magisterska/
Unjustified extension of payment terms
On 1 January 2020, an amendment to the Act on combating unfair competition introducing a new act of unfair competition in Article 17g came into force.
It consists in unjustifiably extending payment deadlines for goods delivered or services performed. The purpose of the article is to protect against so-called payment backlogs, which can be particularly severe for small and medium-sized entrepreneurs and distort competition on the market.
Article 17g provides examples of actions which may fulfil the elements of this act. However, this is not an exhaustive catalogue.
Extending payment deadlines should be considered unjustified whenever it is contrary to the law or good morals, as these are the general prerequisites for an act of unfair competition set out in Article 3 of the Act. However, the new provision specifies that such a situation arises in particular when the deadline is extended in violation of the provisions of the Act of 8 March 2013 on the prevention of excessive delays in commercial transactions.
In addition, it may consist in a gross deviation from good commercial practices, which violates the principle of acting in good faith and the principle of reliability; failure to comply with the timetable for the delivery of goods or the timetable for the performance of services, or failure to take into account the characteristics of the goods or services that are the subject of the contract.
Unjustified extensions of payment deadlines are most often the result of a counterparty abusing its market position and who may therefore have a significant impact on relations between competitors, becoming an element of market rivalry. The new regulation is intended to eliminate pathologies in this respect by granting the aggrieved entrepreneur the claims specified in the Act on combating unfair competition.
We informed about the new provision in the UCLP Portal:
https://uclp.eu/polski-wydluzanie-terminow-platnosci-jako-czyn-nieuczciwej-konkurencji/
Violation of practices restricting competition
As of 24 September 2021, Article 15c of the Act on combating unfair competition is in force, which defines another act of unfair competition.
An act of unfair competition is deemed to be a violation of the prohibition of practices restricting competition within the meaning of Articles 6 and 9 oftrust law. In light of these, it is prohibited to conclude agreements restricting competition, as well as abuse of a dominant position.
the Act of 16 February 2007 on competition and consumer protection (Journal of Laws of 2021, item 275), as well as Articles 101 and 102 of the Treaty on the Functioning of the European Union.
The legislator decided to define the prerequisites of an act of unfair competition by referring to the provisions of national and EU antitrust law. In light of these, it is prohibited to conclude agreements restricting competition, as well as abuse of a dominant position. 
The possibility of pursuing civil law claims under the Act on combating unfair competition strengthens the position of an entrepreneur affected by anti-competitive actions. It should be emphasised, however, that in the case of an act under Article 15c, the assertion of a claim for damages under Article 18(1)(4) of the Act on combating unfair competition is excluded, as the provisions of the Act of 21 April 2017 on claims for damages caused by breach of competition law apply in this respect.
More on the UCLP-website:
Litigation in cases of combating unfair competition
Significant changes with regard to pursuing claims under the law of unfair competition were brought by the amendment of the Code of Civil Procedure under the Act of 13 February 2020.
A separate section on intellectual property cases was introduced to the Civil Procedure Code, which also included cases for preventing and combating unfair competition.
As of 1 July 2020, district courts, within which specialised intellectual property divisions have been established, have subject-matter jurisdiction over cases of acts of unfair competition. By means of regulations, the adjudication of intellectual property cases has been transferred to five district courts (in Gdańsk, Katowice, Lublin, Poznań and Warsaw) and two courts of appeal (in Warsaw and Poznań). In matters of technical trade secrets, the District Court in Warsaw has exclusive jurisdiction.
In civil proceedings, it is possible to make use of new institutions provided only for intellectual property cases. These include the institution of securing evidence prior to the commencement of proceedings or during their course consisting in obliging the defendant or another entity to make available certain evidence in a situation when otherwise it would be impossible or seriously impeded to adduce or prove relevant facts, as well as when there is a risk of destruction of evidence or delay in obtaining evidence may make it impossible or seriously impeded the achievement of the aim of the proceedings, or when for other reasons there is a need to establish the existing state of affairs. A related institution is an application for disclosure or for the production of evidence by the defendant.
Also regulated is a so-called ‘information claim’, the purpose of which is to request the infringer or another entity to provide information on the origin and distribution networks of the goods or services, if this is necessary for the assertion of the claim.
We also wrote about the institution of a request for information in the ULCP Portal:
https://uclp.eu/polski-zadanie-udzielenia-informacji-i-jego-przeslanki/